### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-30790 Summary Calendar

GEORGE LEE, Petitioner-Appellant

v. VENETIA MICHAEL, Warden, Respondent-Appellee

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:10-CV-1712

Before WIENER, STEWART, and HAYNES, Circuit Judges. PER CURIAM: * Petitioner-Appellant George Lee, Louisiana p ri s o n er # 437722, was convicted by a jury of five counts of forcible rape and three c o u nt s o f second degree kidnapping. He was sentenced to a 32-year term of imprisonment. State

v. Lee, 844 So. 2d 970, 974-75, 1000 (La. Ct. App. 2003). Lee filed an application under 28 U.S.C. § 2254 in federal court, claiming, inter alia, that the prosecution violated his rights under the Fifth Amendment by commenting on his failure to testify during closing argument. The district court denied relief on the ground U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May9, 201 2 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-30790 Document: 00511849796 Page: 1 Date Filed: 05/09/2012No. 11-30790

that it was clear fro m th e r e c ord that the prosecution was not commenting on Lee’s failure to testify, but was instead using the trial evidence to cont r a dict Lee’s ta p e d s t at e ment that was played to the jury. The district court nevertheless granted a certificate of appealability on this issue. A federal court may not grant habeas relief on any c l aim that was adjudicated on the merits in state court proceedi n g s unless the state court’s ruling was the result of “a decision that was contrary to, o r i nvolved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or if th e s t ate court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d). A prosecutor’s comment o n a defendant’s failure to testify violates the Fifth Amendment righ t against self-incrimination. Griffin v. California , 380 U.S. 609, 613-15 (1965); United States v. Martinez-Larraga , 517 F.3d 258, 266 (5th Cir. 2008). Remarks made by a prosecutor must be considered in context. United States v. Delgado , 672 F.3d 320, 335 (5th Cir. 2012) (en b a n c) (direct appeal). The Fifth Amendment is violated if the p r o s e c u t or’s “manifest intent

. . . must have been to comment on the defendant’s silence” or if “the character of the remark [was] such that the jury would naturally and necessarily construe it as a comment on the d e fendant’s silence.” Cotton v. Cockrell , 343 F.3d 746, 751 (5th Cir. 2003). There is no manifest intent to comme nt o n a d e f endant’s failure to testify if there is another “equally plausible” exp l a n ati on for a prosecutor’s remarks. United States v. Col l i n s , 972 F.2d 1385, 1406 (5th Cir. 1 9 9 2) (internal quotation and citation omitted). The relevant question w ith regard to the character of such a remark is not whether a jury “possibly or even pr ob ab ly” w ould view it as a comment on the defendant’s silence, but whether a jury would necessarily construe it as such. Id. When read in context of the r e cord as a whole, it is clear that the prosecutor was contending that the trial evidence showed Lee’s taped statement
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explaining that he and one of the victims had had consensual sex simply made

no sense. The prosecutor’s comments were con s i s t ent with the trial evidence. See Delgado , 672 F.3d at 336. An attorney may argue to the jury the “inferences and conclusions” th at it should draw from the evidence so long as counsel’s assertions are based on the evidence. Id. The prosecutor’s closing argument in this case sounds as a comment on the defense’s failure to undermine or rebut the State’s evidence rather than a reference to Lee’s silence. See Montoya v. Collins , 955 F.2d 279, 287 (5th Cir. 1992); United States v. Guzman , 781 F.2d 428, 432 (5th Cir. 1986). Lee has not shown that the district court erred in determining that the state court’s adjudication of his claim was not unreasonable in light of the facts and clearly established federal law. Charles v. Thaler , 6 2 9 F.3d 494, 498 (5th Cir. 2011); see § 2254(d)(1), (2). AFFIRMED.

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